Is there anyway we can find out what evidence is had against our father to attempt to get him out of jail? 51 Answers as of August 18, 2012

My father was sentenced to 10 years on a drug offense he did not commit. From the very beginning he was never allowed to see any discovery. His lawyer never reviewed it with him much less give him the time of day. My father couldn't afford a lawyer so he stuck it out for a while until he no longer could. He asked for new council and received it. Same thing with his new lawyer, never reviewed or sent my father a copy. My father has never seen the evidence against him so he cannot refute it. We are desperately trying to help him come out but because of a lack of knowledge in said matters we are unable to to. He's been incarcerated for 1 1/2 yrs already and has been denied his appeals for a lack of discovery.

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Law office of Robert D. Scott | Robert Scott
If your father was convicted at a trial, that was the time for him to be presented with all evideence against him. If he was convicted by way of a plea, then he very likely conceded that the state had sufficient against him. It appears that his appeal time has run.
Answer Applies to: Maryland
Replied: 8/18/2012
Law Office of Richard Southard
Law Office of Richard Southard | Richard C Southard
You can try contacting the lawyers involved. If that fails, try Freedom of Information requests. Did he plead guilty or was there a trial? If he voluntarily plead guilty, this may be a waste of time.
Answer Applies to: New York
Replied: 8/13/2012
Law Office of Christopher G Humphrey PC | Christopher G Humphrey
If he is in Federal court, he saw the discovery, but could not keep it. The discovery was limited. The only way to see the full discovery was to go to trial and risk getting a lot of time. Read "Busted by the Feds".
Answer Applies to: Wyoming
Replied: 8/13/2012
Gregory Casale Attorney at Law
Gregory Casale Attorney at Law | Gregory Casale
When your father plead out to the charges, he had to answer questions posed by a judged, called a colloquy.

Before accepting the plea, the judge asks questions such as: Have you had enough time to speak with your lawyer?

Do you believe that he/she is acting in your best interests?

Has your lawyer explained the charges and the elements of the crime to you?

Has your lawyer explained the rights that you are giving up by pleading today, etc.?

The judge will also have the District Attorney read the police report out load in court and ask the defendant if that is what happened and if the reason he is pleading guilty is because he in fact guilty and for no other reason.

Unless your father answered appropriately to all of these questions, the judge would not accept his plea. Therefore, it will be hard to later come back and say that the lawyer didn't do something properly or that the defendant didn't know what was going on.

The colloquy is specifically designed to avoid a situation where a defendant pleads guilty without being fully informed and without having adequate legal representation. I wish you luck but it will be hard to turn things around after your father said he was guilty of the crime he pled out to.
Answer Applies to: Massachusetts
Replied: 8/13/2012
Michael Breczinski
Michael Breczinski | Michael Breczinski
I find it hard to believe that he never got his police reports especially with two lawyers. They are required to provide copies of those things to the client upon demand.
Answer Applies to: Michigan
Replied: 8/13/2012
    Kevin Bessant
    Kevin Bessant | Kevin Bessant
    Discovery evidence should always been made available for the defendant to view and decipher. Because your father has already been convicted, his only option is to continue the appellate process based upon ineffective assistance of counsel. He will need to consult an appellate attorney. If in Michigan, you may want to consult the State Appellate Defenders Office (SADO), you can also attempt to contact his last attorney to see if he/she will provide you with the discovery materials for appellate purposes as well.
    Answer Applies to: Michigan
    Replied: 8/15/2012
    James M. Osak, P.C.
    James M. Osak, P.C. | James M. Osak
    You'll need to get the "trial transcripts" to read and find out what happened. There was a trial? Or did dad just plead out? You can get those transcripts also. They should "lay out" what evidence they had against dad.
    Answer Applies to: Michigan
    Replied: 8/10/2012
    Austin Hirschhorn, P.C.
    Austin Hirschhorn, P.C. | Austin Hirschhorn
    You don?t indicate whether your father was sentenced after a trial or after he pled guilty. If he was sentenced after a plea, the court had to be satisfied as to his guilt in order to accept a guilty plea. If he was found guilty after a trial in which he was represented by counsel, his only way to get relief would be for him to file a delayed appeal because he has already served 1 ? years and the time for him to file an appeal as of right has expired. I find it hard to believe that your father claims to know nothing about the evidence against him if he participated in the process. Since court files are public records you might start by reviewing the court file to determine what is reflected in it. If you feel there may be a basis for filing a delayed appeal after your initial investigation you should hire a criminal appellate attorney to investigate the case involving your father and determine if there is a basis for filing an application for a delayed appeal. I am sure that the attorney would tell what would be needed and what the cost would be for his work.
    Answer Applies to: Michigan
    Replied: 8/10/2012
    Law Office of Mark Bruce
    Law Office of Mark Bruce | Mark Corwin Bruce
    This is a State Bar issue. Also, your father might have a case for appeal based on Ineffective Assistance of Counsel (IAC). However, my experience with such clients is that they will often make allegations such as this to avoid telling their family that they were, indeed, guilty of the charges. Before you go to the State Bar, before you hire a lawyer for an IAC appeal, have a heart to heart with Dad to make sure he's not just trying to save face. 10 years is a long time for a drug offense in today's world.
    Answer Applies to: California
    Replied: 8/10/2012
    Law Offices of Mark L. Smith
    Law Offices of Mark L. Smith | Mark L. Smith
    If your father's appeal has been denied the only thing he can do is file an application for post conviction relief declaring his lawyer was ineffective. These are difficult cases but that is his only resort.
    Answer Applies to: Rhode Island
    Replied: 8/10/2012
    Law Office of Michael E. Dailey
    Law Office of Michael E. Dailey | Michael E. Dailey
    You are not getting the whole story. If he was denied discovery by the prosecution, that fact alone will be grounds for an appeal particularly if that issue was brought up in the trial court and preserved for appeal. Discovery is provided upon proper request in all state criminal cases. If it is a Federal charge he may not see or possess the actual discovery but his attorney most certainly has had access to it. If he has exhausted the direct appeal remedy he may still have a challenge for incompetent counsel if his attorney did not get or request the discovery or possibly if he failed to share or review it with him prior to trial. You may need to employ an attorney for him to make this challenge or if the the time permits he can file it himself and the court will appoint a different attorney to represent him on that claim. If he has waited too long to file this action he may need to consider some of the extraordinary remedies that may be available.
    Answer Applies to: Missouri
    Replied: 8/10/2012
    Reza Athari & Associates, PLLC | Seth L. Reszko
    Obviously, this is a difficult case for any attorney at this point in time. It sounds like no appeals are pending. You might be able to file a writ of habeas corpus depending on what errors were committed and what is in the discovery. Your father should be able to receive a copy of the file from the attorney who handled the appeal. Make sure that request is sent out. If you are interested in seeking new private counsel, we would be willing to look at your father's case. We provide free consultations, walk-in appointments are welcome and we offer reasonable payment plans.
    Answer Applies to: Nevada
    Replied: 8/10/2012
    Myles Hahn III Attorney at Law | Myles Hahn III
    It appears the only way out of this predicament, unfortunately, is to retain the services of another attorney. Most attorneys investigate a case completely. They read all police reports, videos, photos, and other evidence. Only AFTER seeing and reading all discovery do they do the trial. He can get a new trial only under very specific circumstances, if at all. So, get the attorney immediately.
    Answer Applies to: Illinois
    Replied: 8/10/2012
    Law Office of Gregory Crain | Gregory Crain
    Freedom of information act request to the prosecutor. Copy the affidavit from the file at the circuit clerk's office.
    Answer Applies to: Arkansas
    Replied: 8/10/2012
    Alvin Lundgren | Alvin Lundgren
    You may want to appeal based on lack of proper representation.
    Answer Applies to: Utah
    Replied: 8/10/2012
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    Your father's only hope is that he would have some basis for setting aside his conviction on what is commonly referred to as a Rule 32 motion. There is no way of knowing whether any basis exists without having an attorney review the entire record.
    Answer Applies to: Alabama
    Replied: 8/10/2012
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    The defendant does not need to be given access to the discovery, that is a matter between his lawyer and the state prosecutor. Obviously apppeals have already been filed in his behalf, and they have all failed. He could file appeal for lack of competant representation by his court appointed counsels, (I assume they were FREE counsels), but doubt that the conviction will be reversed.
    Answer Applies to: Illinois
    Replied: 8/10/2012
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    First off if he made appeals for "lack of discovery" maybe the problem was not his lawyers but the prosecutor refusing to turn over discovery. What your father needs to do is demand the file from his attorney and bring it to another attorney to review and see if there is grounds to make a motion to the trial court to vacate the conviction for ineffective assistance of counsel or other grounds.
    Answer Applies to: New York
    Replied: 8/10/2012
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    Not likely to be able to answer your question. A party has only 30 days to appeal and if your father never said anything then it cannot be overturned.
    Answer Applies to: Nebraska
    Replied: 8/9/2012
    Leonard A. Kaanta, P.C. | Leonard A. Kaanta
    If he has lost his appeal in the Court of Appeals, you can appeal to the Michigan Supreme Court.
    Answer Applies to: Michigan
    Replied: 8/9/2012
    Dennis P. Mikko Attorney at Law | Dennis P. Mikko
    Since your father has already been sentenced it will be difficult to overturn the conviction but not impossible. Your father should have received a copy of the police report and if he did not he should request one. This may be done by him or you through the Freedom of Information Act. The police report should provide some clue as to the evidence against him. Once you have received this, you should speak with an attorney, maybe through a law school innocence project, and have the information reviewed. If you father's attorney never reviewed any of the information there may also be a claim against the attorney for malpractice.
    Answer Applies to: Michigan
    Replied: 8/9/2012
    DeVito & Visconti, PA
    DeVito & Visconti, PA | John E DeVito
    I suggest that your father write both attorneys and request a complete copy of his file. Then hire an attorney to review the file.
    Answer Applies to: Massachusetts
    Replied: 8/9/2012
    Law Office of William L Spern | William Spern
    Make a FOIA request to the police and prosecutor. Demand a copy of the lawyer's file. If no response, file a law suit against police and prosecutor for false arrest and malpractice against the lawyer.
    Answer Applies to: Michigan
    Replied: 8/9/2012
    Dennis Roberts, a P.C.
    Dennis Roberts, a P.C. | Dennis Roberts
    There are some facts missing. If he has been convicted and you want to see the discovery get a note from dad to the lawyer authorizing him to give you a copy of the discovery. They have to redact it (black out the names or addresses of witnesses, victims, whatever, but you can still figure out what happened. Anyhow something is missing here.
    Answer Applies to: California
    Replied: 8/9/2012
    Law Office of Neal L. Weinstein
    Law Office of Neal L. Weinstein | Neal L. Weinstein
    If he never saw the discovery, he can appeal on the basis of ineffective assistance of counsel. He can also get the discovery from his lawyer, or if the lawyer will not give it to him, he can report the lawyer to the board of overseers and have the lawyer disciplined. BUT, your father could not be in jail unless he either plead guilty, or had a trial and lost. In either case, he would know what the evidence against him was, as no judge will allow a guilty plea on a felony unless he first reads the evidence to the defendant and the defendant agrees to facts read to him, or he actually sat in court and heard witnesses at a trial against him. I think your father may not be being fully truthful with you, or you may have the facts wrong. I do not believe that any judge would send someone to jail for 10 years without that person seeing the evidence. Your story does not make sense.
    Answer Applies to: Maine
    Replied: 8/9/2012
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    You need to find an attorney to review the entire case... all files and records and transcripts of the court proceedings. This can be very expensive and time consuming. If the attorney can find a mistake that was CRITICAL to the case (it has to be more than a simple mistake that would not affect the outcome of the case), then the attorney could petition the court to reopen the case and possibly get a new trial. This is a reach, but it is your only option. Good luck.
    Answer Applies to: Washington
    Replied: 8/9/2012
    Herschel Bullen
    Herschel Bullen | Herschel Bullen
    This question lacks far too much by way of underlying facts to provide an intelligent response. For example, did he plead guilty or was he convicted by a jury? Did he have private attorneys or the legal defender? Everyone is entitled to a lawyer on a serious offense, so the statement that he "stuck it out" strikes me as unusual. Was this a State offense or was it a Federal Court matter? Discovery has nothing to do with the right to a first appeal, to which everyone is entitled as a matter of right (except from a guilty plea where no motion to withdraw it was made in the trial court). Too many facts are unknown to respond intelligently.
    Answer Applies to: Utah
    Replied: 8/3/2012
    William L. Welch, III Attorney | William L. Welch, III
    In Maryland state court the Office of the Public Defender will represent him in a Petition for Postconviction. In federal court the Federal Public Defender will represent him in a 28 U.S.C., Sec. 2255 action.
    Answer Applies to: Maryland
    Replied: 8/9/2012
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    You would have to call my office if you want to appeal the case. An appeal is $15,000-$20,000 and that is why most people use Legal Aid. Your father had a public defender and you get what you pay for. They do not always explain the details of the case, provide a copy of the papers, or do a proper investigation. You do not know if your father was innocent or not, and unless you have the details no one can tell you if he "probably" was or was not guilty. If he plead guilty he was definitely guilty. If he was convicted at trial he was "probably" guilty but the police or other witnesses could have been mistaken or lying, I cannot say without an investigation. Very few innocent people are convicted, but almost everyone tells their family they are innocent. You should have talked to the lawyer, gotten a copy of the file, and asked him what the facts were. If your father got 10 years he either has a very bad record or it was a very serious case of dealing a large amount of drugs. Before you accuse the lawyer, the judge, the jury, or the system you should find out what he facts are because it is not right to throw around serious accusations without proof. That is what happens when people believe what defendants say before they know what really happened.
    Answer Applies to: New York
    Replied: 8/9/2012
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Your father's a bit late in the game. Everything you brought up should have been litigated while the case was pending. Now the case is over, and it is a lot harder to address those issues.
    Answer Applies to: California
    Replied: 8/9/2012
    Larry K. Dunn & Associates | Larry K. Dunn
    Any appeal of a felony conviction must be filed within 30 days of conviction and Post Conviction relief is usually allowed within one year of the conviction absent special circumstances. Any person represented by an attorney is entitled to a copy of the attorney's file. A person can request the file and contact the Nevada State Bar Association if there is a problem obtaining a copy of the file. A person should contact an attorney who specializes or practices primarily in post conviction relief to review whether there is a possibility of pursuing the matter at this point in time.
    Answer Applies to: Nevada
    Replied: 8/9/2012
    Universal Law Group, Inc. | Francis John Cowhig
    I am assuming that your father had a public defender, as opposed to private counsel. The problem with a public defender is that, due to their caseload, they cannot review the evidence in every case with their clients. I am also assuming that your father went to trial. The evidence against him would have been presented at the trial. If your father entered into a plea agreement, he may have a claim of ineffective assistance of counsel, but that is a longshot. You also mention that he was denied his appeals. I'm not sure I understand what you mean by that. Do you mean that your father's case was appealed and he lost at the appellate level, or that he was unable to file an appeal. There are many questions which your inquiry does not answer. I suggest that you contact an experienced criminal law attorney for a face-to-face consultation and give him/her all of the facts surrounding your father's case. He/she would then be in a better position to analyze you case and advise you of your options. Good luck.
    Answer Applies to: California
    Replied: 8/9/2012
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    He, not you, can obtain access to and copies of his file. He can hire an attorney to do so for him. More importantly, if he has already filed and lost an appeal on the facts of the case, etc., it sounds like there may be little more that can be done, unless he has good cause grounds for an appeal, possibly based upon lack of effective counsel. If you are ready, willing and able to hire and pay counsel to review the file and possibly file such an appeal, feel free to contact me. However, Before I am willing to spend time meeting with you, I require you prepare a written thorough case history and summary explaining the entire situation to the best of your ability, from the beginning at arrest. I need to know everything about the case facts and your claims. I am not willing to spend hours in discussion with you trying to randomly get bits and pieces at a time. Spend the time to do the summary well without having to pay me while you do. We then can speak on the phone briefly to discuss the facts and my opinions, and what attorney fees you will expect for consultation, and file review, and ultimately the appeal process. If you proceed with an appeal, you will be required to obtain the entire court file of the criminal proceedings and the appeal proceedings, including ALL paperwork, pleadings, motions, rulings, orders, and especially court reporter transcripts of ALL proceedings. Expect transcipts to be a substantial cost if there were very many days in court. Your father will have to request and you can pay for all of those.
    Answer Applies to: California
    Replied: 8/9/2012
    Law Office of Ronald G. Draper | Ronald G. Draper
    Unfortunately,unless your father has complained to the judge ,written letters to the judge, filed pro se motions on his own behalf, little can be done without hiring a private attorney.
    Answer Applies to: Illinois
    Replied: 8/9/2012
    T.K. Byrne | Timothy K. Byrne
    If he plead guilty, he is out of luck. If he went to trial and was found guilty, he should have begun the appeal process.
    Answer Applies to: Mississippi
    Replied: 8/9/2012
    John P Yetter | John Yetter
    He has a right to a Post-Conviction Petition under Illinois law. He should retain a qualified attorney to help him.
    Answer Applies to: Illinois
    Replied: 8/9/2012
    Law Office of Bernal Peter Ojeda | Bernal Peter Ojeda
    It's unclear when you dad was sentenced. If recent he could appeal on in effective assistance of counsel. His attorney should have gone over the evidence against him to decide if trial was an option.
    Answer Applies to: California
    Replied: 8/9/2012
    Law Office of James A Schoenberger
    Law Office of James A Schoenberger | James A Schoenberger
    Go to the courthouse and the clerk's office where you can review the file. The discovery mostly police reports will not be in the file, but a summary of the police reports will be in the state's statement for determination of probable cause, which will be in the file.
    Answer Applies to: Washington
    Replied: 8/9/2012
    Clinton Law Office | Michael Clinton
    This situation sounds pretty incredible. If your father was convicted in court and is now serving 10 years, the evidence against him must have been presented at his trial. Otherwise how could they convict him? As to exculpatory evidence, that should have been provided to his attorney if there was any. In the end, this is your father's case. Not yours. He is the one who's rights are at issue and it is up to him to exercise those rights. Unless you represent your father (as an attorney), you will have trouble getting what you want.
    Answer Applies to: Washington
    Replied: 8/9/2012
    Steven Alpers | Steven Alpers
    The only issue might be if the court would grant a petition for habeas corpus for ineffective assistance of counsel. There is no right to receive a police report, the attorney should have at least reviewed the police report with your father. This would not be inexpensive and it would not have a great chance of success. Your father can get the file on line at the California Judicial Council website.
    Answer Applies to: California
    Replied: 8/9/2012
    Mary W Craig P.C. | Mary W Craig
    This question is a little hard to answer because I can't imagine a DA not turning over evidence before trial, or two lawyers in a row refusing to share discovery with a client. If your father pled guilty on advice of counsel without ever seeing any evidence against him, then he may have a Rule 32 action against the lawyer for ineffective assistance of counsel. If he went to trial and was convicted, and his lawyer never asked for discovery, then he may have a Rule 32 ineffective assistance claim because of that. If he wishes to raise ineffective assistance of counsel, he should have done so within one year. However, judges can grant permission to file what we call an "out of time" Rule 32 action. That's up to the judge, though.
    Answer Applies to: Alabama
    Replied: 8/9/2012
    R. Jason de Groot, P.A
    R. Jason de Groot, P.A | R. Jason de Groot
    You will need to hire an attorney to see what, if anything can be done. Go to the clerk of the circuit court in the county where he was prosecuted and see whatever there is in the court file. Namely, a police report and any and all other discovery materials and depositions, if there are any. There are many people in jail who do not deserve to be there. There is very little that can be done without a diligent and competent criminal defense attorney. A private one must be retained, and we charge money. The free attorneys are worth what you pay, sometimes they are great. Your father needs to be free and it is probably a very long uphill battle to achieve that goal. One of the first things that any attorney should look at is whether there may be a claim made for ineffective assistance of counsel.
    Answer Applies to: Florida
    Replied: 8/9/2012
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    First, if your father was convicted, his only remedy is a post conviction relief action. That would require showing that there is new evidence which could not have been discovered earlier in the case. Other basis for a post conviction relief action include ineffective assistance of counsel or some type of impropriety by the Judge ,prosecutor or jury. Your father cannot, however, simply relegate the same case. That time has passed. Second, the evidence may be acquired by your father by seeking that information, through counsel, from the prosecutor. He would also acquire any documents from his defense lawyers so that he can see what evidence and information was acquired.
    Answer Applies to: Minnesota
    Replied: 8/9/2012
    Mace J. Yampolsky, LTD
    Mace J. Yampolsky, LTD | Mace Yampolsky
    Has he appealed? If so you have 1 year form the time the appellate decision was handed down to file a motion for post-conviction relief in State court.
    Answer Applies to: Nevada
    Replied: 8/9/2012
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    I can help you get what you want from your father's lawyer. Actually, the lawyer should be willing to surrender the file, with something in writing authorizing same.
    Answer Applies to: New Jersey
    Replied: 8/9/2012
    Adam C. Essling Attorney At Law | Adam C. Essling
    Your father can request a copy of his entire file from his former attorney. It is his file.
    Answer Applies to: Wisconsin
    Replied: 8/9/2012
    Mark Thiessen, Attorney at Law
    Mark Thiessen, Attorney at Law | Mark Thiessen
    You need to hire an appellate attorney. Google one in your area that specializes in appeals. It is not going to be cheap though.
    Answer Applies to: Texas
    Replied: 8/9/2012
    Law Office of Jared C. Winter
    Law Office of Jared C. Winter | Jared C. Winter
    If he has been sentenced than he either pled guilty or was convicted at trial. If he pled guilty, he should consider pursuing a motion to withdraw his plea. If he was convicted at trial, then he needs to file notice of appeal.
    Answer Applies to: California
    Replied: 8/9/2012
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